Due to the way an older DUI law was structured, people used to advise anyone who had been arrested for DUI to avoid blowing into a breathalyzer. That way, the police would not be able to prove how drunk someone was.

If you refuse to submit to a breath test requested by Law Enforcement, you be face a DL suspension of 90 days on a first refusal and a year on a second refusal. More importantly, if you have ever previously refused to take the test, your refusal can be the basis for a separate criminal charge for which you may face jail of up to a year.

The prosecution will be able to argue to a jury (should your case go to trial) that your refusal was evidence of guilt because you prevented the jury from knowing how much alcohol was in your system. The argument is that you knew you were over the limit and just obstructed the collection of evidence that would show it. Why would an unimpaired person refuse a test that would prove their innocence?

Sometimes, in some courtroom, we have been successful in keeping the breath results from the jury. In that case there is no penalty for blowing in the machine and the results do not make it to the jury anyhow. IN other cases, especially where the results are not too high, we have been able to argue that the results are not reliable or not accurate as of the time you were driving. There are not many defenses to refusing to take the test. The police typically videotape the procedure where you are offered the test and you refuse. That is a video that you do not want viewed by the jury.